CHAPTER II.

WAR POWERS OF CONGRESS.*

CONGRESS has power to frame statutes not only for the punishment of crimes, but also for the purpose of aiding the President, as commander-in-chief of the army and navy, in suppressing rebellion, and in the final and permanent conquest of a public enemy. "It may pass such laws as it may deem necessary," says Chief Justice Marshall, "to carry into execution the great powers granted by the constitution;" and "necessary means, in the sense of the constitution, does not import an absolute physical necessity, so strong that one thing cannot exist without the other. It stands for any means calculated to produce the end."

RULES OF INTERPRETATION.

The constitution provides that Congress shall have power to pass all laws necessary and proper" for carrying into execution all the powers granted to the gov ernment of the United States, or any department or officer thereof. The word "necessary," as used, is not limited by the additional word "proper," but enlarged thereby.

"If the word necessary were used in the strict, rigorous sense, it would be an extraordinary departure from the usual course of the human mind, as exhibited in solemn instruments, to add another word, the only possible effect of which is to qualify that strict and rigorous meaning, and to present clearly the idea of a choice of means in the course of legislation. If no means are to be resorted to but such as

For references to the clauses of the Constitution containing the war powers of Congress, see ante, pp. 27, 28. ́

are indispensably necessary, there can be neither sense nor utility in adding the word 'proper,' for the indispensable necessity would shut out from view all consideration of the propriety of the means." *

Alexander Hamilton says,—

"The authorities essential to the care of the common defence are these: To raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist WITHOUT LIMITATION, because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means necessary to satisfy them. The circumstances which endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. . . . This power ought to be under the direction of the same councils which are appointed to preside over the common defence. . . . It must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defence and protection of the community in any matter essential to its efficacy that is, in any matter essential to the formation, direction, or support of the NATIONAL FORCES."

This statement, Hamilton says,

"Rests upon two axioms, simple as they are universal: the means ought to be proportioned to the end; the persons from whose agency the attainment of the end is expected, ought to possess the means by which it is to be attained." †

The doctrine of the Supreme Court of the United States, announced by Chief Justice Marshall, and approved by Daniel Webster, Chancellor Kent, and Judge Story, is thus stated:

"The government of the United States is one of enumerated powers, and it can exercise only the powers granted to it; but though limited in its powers, it is supreme within its sphere of action. It is the government of the people of the United States, and emanated from them. Its powers were delegated by all, and it represents all, and acts for all.

There is nothing in the constitution which excludes incidental or

3 Story's Commentaries, Sec. 122. + Federalist, No. 23, pp. 95, 96.

implied powers. The Articles of Confederation gave nothing to the United States but what was expressly granted; but the new constitution dropped the word expressly, and left the question whether a particular power was granted to depend on a fair construction of the whole instrument. No constitution can contain an accurate detail of all the subdivisions of its powers, and all the means by which they might be carried into execution. It would render it too prolix. Its nature requires that only the great outlines should be marked, and its important objects designated, and all the minor ingredients left to be deduced from the nature of those objects. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, were intrusted to the general government; and a government intrusted with such ample powers, on the due execution of which the happiness and prosperity of the people vitally depended, must also be intrusted with ample means of their execution. Unless the words imperiously require it, we ought not to adopt a construction which would impute to the framers of the constitution, when granting great powers for the public good, the intention of impeding their exercise by withholding a choice of means. The powers given to the government imply the ordinary means of execution; and the government, in all sound reason and fair interpretation, must have the choice of the means which it deems the most convenient and appropriate to the execution of the power. The constitution has not left the right of Congress to employ the necesssary means for the execution of its powers to general reasoning. Art. I, Sect. 8, of the constitution, expressly confers on Congress the power to make all laws that may be necessary and proper to carry into execution the foregoing powers.' Congress may employ such means and pass such laws as it may deem necessary to carry into execution great powers granted by the constitution; and necessary means, in the sense of the constitution, does not import an absolute physical necessity, so strong that one thing cannot exist without the other. It stands for any means calculated to produce the end. The word necessary admits of all degress of comparison. A thing may be necessary, or very necessary, or absolutely or indispensably necessary. The word is used in various senses, and in its construction the subject, the context, the intention, are all to be taken into view. The powers of the government were given for the welfare of the nation. They were intended to endure for ages to come, and to be adapted to the various crises in human affairs. To prescribe the specific means by which government should

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in all future time execute its power, and to confine the choice of means to such narrow limits as should not leave it in the power of Congress to adopt any which might be appropriate and conducive to the end, would be most unwise and pernicious, because it would be an attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been foreseen dimly, and would deprive the legislature of the capacity to avail itself of experience, or to exercise its reason, and accommodate its legislation to circumstances. If the end be legitimate, and within the scope of the constitution, all means which are appropriate, and plainly adapted to this end, and which are not prohibited by the constitution, are lawful.” *

Guided by these principles of interpretation, it is obvious that if the confiscation of property, or the liberation of slaves of rebels, be " plainly adapted to the end," - that is, to the suppression of rebellion, it is within the power of Congress to pass laws for those purposes. Whether they are adapted to produce that result is for the legislature alone to decide. But, in considering the war powers conferred upon that department of government, a broad distinction is to be observed between confiscation or emancipation laws, passed in time of peace, for the punishment of crime, and similar laws, passed in time of war, to aid the President in suppressing rebellion, in carrying on a civil war, and in securing "the public welfare" and maintaining the "common defence" of the country. Congress may pass such laws in peace or in war as are within the general powers conferred on it, unless they fall within some express prohibition of the constitution. If confiscation or emancipation laws are enacted under the war powers of Congress, we must determine, in order to test their validity, whether, in suppressing a rebellion of colossal proportions, the United States are, within the meaning of

On the interpretation of constitutional power, see 1 Kent's Com. 351, 352; McCulloch v. The State of Maryland, 4 Wheat. R. 413–420.

the constitution, at war with its own citizens? whether confiscation and emancipation are sanctioned as belligerent rights by the law and usage of civilized nations? and whether our government has full belligerent rights against its rebellious subjects?

ARE THE UNITED STATES AT WAR?

War may originate in either of several ways. The navy of a European nation may attack an American frigate in a remote sea. Hostilities then commence without any invasion of the soil of America, or any insurrection of its inhabitants. A foreign power may send troops into our territory with hostile intent, and without declaration of war; yet war would exist solely by this act of invasion. Congress, on one occasion, passed a resolution that "war existed by the act of Mexico;" but no declaration of war had been made by either belligerent. Civil war may commence either as a general armed insurrection of slaves, a servile war; or as an insurrection of their masters, a rebellion; or as an attempt, by a considerable portion of the subjects, to overthrow their governmentwhich attempt, if successful, is termed a revolution. Civil war, within the meaning of the constitution, exists also whenever any combination of citizens is formed to resist generally the execution of any one or of all the laws of the United States, if accompanied with overt acts to give that resistance effect.

DECLARATION OF WAR NOT NECESSARY ON THE PART OF THE GOVERNMENT TO GIVE IT FULL BELLIGERENT POWERS.

A state of war may exist, arising in either of the modes above mentioned, without a declaration of war by either of the hostile parties. Congress has the sole power, under the constitution, to make that declaration, and